1981: Aboriginal people fight for constitutional protection

The Story

The long journey to bring home Canada's Constitution has hit a major roadblock. Native and treaty rights have been left out of the new Constitution, and thousands of native people across the country stage demonstrations. Among the demonstrations is giant march on Ottawa's Parliament Hill. As we see in this CBC Television clip, native people are united in their frustration and are resolved to force Ottawa to guarantee their rights.

Did You know?

• An even larger demonstration was held on the same day by native people in Alberta. More than 5,000 of them rallied at an Edmonton arena, then marched to the provincial legislature in freezing weather. They were greeted by premier Peter Lougheed, who told them his government fully supported inclusion of native rights in the Constitution.

• In the fall of 1981 there was considerable opposition to Pierre Trudeau's planned Constitutional patriation. Knowlton Nash opened this Nov. 19, 1981 edition of The National with these words: "It's been just an incredible day in Ottawa. Nobody seems happy with the constitutional resolution."

• Critics pointed to two major omissions in the constitutional strategy: aboriginal and treaty rights, and the equality of women.

• Clause 34 of the Charter of Rights and Freedoms, which had recognized a form of Aboriginal and Treaty rights, was not included in the Constitution.

• Both the Progressive Conservatives and the New Democratic Party opposed a Constitution that did not include native and women's rights. The provinces were divided in their support.

• Ottawa moved swiftly to rectify the problem. The federal government and all provincial governments except Quebec reached an agreement on the rights issues, and on Nov. 26, 1981 the House of Commons voted unanimously to recognize existing native and treaty rights and guarantee gender equality in the new Constitution.

• Quebec premier René Lévesque agreed with the principles proposed by the Aboriginal leaders but did not sign the accord based on his earlier opposition to the Constitution Act. "I say without any bitterness we will not sign this accord," he said at the amendment meeting.

• The Constitution was proclaimed on April 17, 1982.

• While specific mention of Aboriginal rights were codified in the 1982 Constitution Act, the politicians agreed to leave more specific agreements to the future.

• The Constitution Amendment Proclamation of 1983 was the first amendment to the new Constitution. It secured Aboriginal rights regarding land claim agreements and provided for the equality of Native women. The proclamation also committed provincial and federal governments to include aboriginal representatives in future conferences.

• Section 35 of the 1982 Constitution Act, which "recognized and affirmed" Canada's "existing" aboriginal and treaty rights, has been controversial.

• It was left to the Supreme Court to determine what rights "existed" before 1982, including common law -- rights that were now entrenched or "frozen". In the 1990 R. v. Sparrow case over fishing rights, the court determined the Constitution limits the government's ability to restrict aboriginal rights through legislation.

• Section 35 has been the focal point of many confrontations over hunting and fishing rights and land claims. Mel Smith of the Fraser Institute claims that the section "has been interpreted in an expansive manner far beyond what was ever intended by its framers."